Share this

Read more!

Get our weekly email

Enter your email address

For those who care about
freedom in Britain,
last month witnessed one of the more depressing votes in the last couple of
hundred years. By a majority of just 16, the House of Lords rejected amendments
to the Justice and Security Bill thereby ending its passage through Parliament.
Presumably Royal Assent will follow in the next few weeks. The Justice and
Security Bill, when passed, will permit the government to defend itself in
secret.

The Justice and Security
Bill ends, in one go, centuries of protections which have ensured fair trials
in this country. The two protections ended are, first, what is called ‘equality
of arms’ (the ability of a party to know the case they face, to see and be able
to challenge all the evidence relied on by the other party, to call evidence in
rebuttal if necessary, and to make submissions to the judge about that
evidence), and, second, the principle of open justice – that justice is not
only done, it is seen to be done. The Bill ends these protections in ordinary
civil claims.

‘Civil claims’ does not just
mean claims for damages, although those are included. It means claims for
judicial review, contempt of court, and habeas corpus (the right to know why
one is imprisoned and to challenge that imprisonment). It was therefore a truly
terrible day for British justice and for democracy when this Bill passed in the
Lords last month.

The impetus for the Bill
came from the Security Services. They were embarrassed by the revelations of
their involvement in kidnap and torture. This included not just “bad people”
such as, they would argue, Binyam Mohammed, Saadi Al-Saadi and Abdul-Hakim
Belhaj, but also, in the case of Saadi Al-Saadi, his wife and children, and in
the case of Abdul-Hakim Belhaj, his wife who was chained to a wall for three
days when she was five months pregnant.

Among the many interventions
in the Justice and Security Bill’s sad and sorry journey through parliament
have been those of the Government’s Independent Reviewer of Terrorism
Legislation, David Anderson QC. He is a ‘watchdog’ - someone who is trusted by
the State to know everything but charged with protecting the public good as an
independent person above party and vested interests.

His role deserves telling to
show how we have been failed by those appointed to help us as campaigners sought
to show the true nature of the Bill and prevent its becoming law.

“My reports and recommendations are based on
conversations with a wide range of people who enforce or are otherwise affected
by the terrorism laws in all parts of the UK, and on my reading which includes
comparative materials and - crucially -
unrestricted access to sensitive security documents.”

This sweeping statement does
not hold up to scrutiny, at least in the case of the files from the Security
Services he relied on in support of the Justice and Security Bill.

The background is as
follows. The government issued a ‘Green Paper’ setting out its case for the
proposed legislation. One of the ways the government sought to mask its
significance was by calling secret proceedings ‘Closed Material Proceedings’ or
CMPs. Their claim was that CMPs would only be needed to be used in a “small
number of cases”. (Green Paper paragraph 2.4)

In an understandable and
appropriate effort to establish how profound a change was proposed to the fair
trial protections, David Anderson sought to find out how many cases would be
affected by the Bill’s proposals. He sought information about the size of the problem
and attempted to obtain details from the Security Services and the Ministry of
Justice to justify the need for CMPs.

He
did not make very much progress.

Part
of Anderson’s
role is to report to parliament’s Joint
Committee on Human Rights. In his report dated 26th January 2012 he
told them:

“8. Lack of information prevents me from expressing
any firmer view in relation to the size of the problem. At my request, I was
helpfully provided with further information on the pending cases referred to in
GP Annex J para 11. Their subject-matter is various, ranging from damages
claims for complicity in detention, rendition and torture to judicial reviews
of naturalisation decisions. The Green Paper claims that “sensitive information
is central” to them (which I do not doubt), and asserts that “in many of these
cases judges do not have the tools at their disposal to discharge their
responsibility to deliver justice based on a full consideration of the facts”.
It stops short however of stating whether each of these cases could be fairly
resolved only by means of a CMP. When I sought discreetly to pursue this question
with the Treasury Solicitors‟ Department or with counsel instructed by them, I
was told on instructions that it could not be discussed. Accordingly, while I
think it likely that a problem does exist, I am unable to assist the Committee
with any informed estimate of its size or gravity.”.

This lack of information
troubled the members of the Joint Committee itself. In its first report on the
Bill, the Joint Committee on Human Rights expressed its concern over the lack
of clarity as to whether the number of relevant cases was “27, 15, 6 or 3”
(paragraph 42)

“Pending
receipt of a response to our latest attempt to clarify the evidential basis for
the Government’s case for the provisions in Part 2 of the Bill, we remain unpersuaded
that the Government has demonstrated by reference to evidence that there exist
a significant and growing number of civil cases in which a CMP is “essential”,
in the sense that the issues in the case cannot be determined at all without a
CMP.”

To his
credit, Anderson
persisted in his requests for information. On 14 March 2012 he was shown seven
cases by the Security Services – four claims for judicial review, and three
damages claims. As he acknowledges via his Twitter account to a question I
posed to him (his Twitter name is @terrorwatchdog):

It is not clear why Mr
Anderson was only shown seven cases. He is security cleared, there is no danger
of any leak of information, he is entirely trustworthy where matters of
national security are concerned, otherwise he would surely not have been appointed.
So why were the remaining twenty, or so, cases hidden from him? What can have
been the risks - if these cases existed, and if they helped show the nature of
the problem behind the Bill surely the Security Services should have wanted him
to see them?

More importantly for those
who want our watchdog to protect us, why did David Anderson, “not press for
details of the others”? He has remained silent about this, despite being asked
publicly. Surely it was his duty to ask for those details? In order to advise
the Joint Committee on Human Rights he needed that information. We, the public,
needed him to be shown that information to understand, via his expertise, the
risks to the public that our Security Services say they are facing due to these
claims for damages for torture and kidnap. That is the point of having a
‘watchdog’.

And why, despite his
acknowledgement that he did not see all of these cases, does Mr Anderson’s
website still claim that he enjoys “crucially - unrestricted access to security
sensitive material”. When asked about this, again he did not reply.

The
question remains unanswered. The Justice and Security Bill has profound
implications for all of us, for our ability to hold power to account, and to
shine a light into the dark places where those whose duty is to protect us may
break the law. Sunlight is the best disinfectant, they tell us, but in the case
of this Bill, even the Government’s Independent Reviewer of Terrorism
Legislation has been refused permission to bring the evidence into the light
even while he himself is surrounded by a screen of secrecy.

It
is a very, very bad day that we now have secret justice in this country in our
civilian courts. But it is just as bad that our Parliament has legalised such
an abomination while accepting that the
Independent Reviewer of Terrorism Legislation, who is supposed to scrutinise the claims of the
Secret Service accepted a blindfold (blinkers?). At the very least our watchdog
should have barked.

Related

This article is published under a Creative Commons
Attribution-NonCommercial 4.0 International licence. If you have any
queries about republishing please
contact us.
Please check individual images for licensing details.